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Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal.
Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com

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Friday, January 11, 2019

Washington Post (Op-Ed) How to end the government shutdown — with neither side losing

By Dov Weinryb Grohsgal

The government shutdown has already caused significant hardship and promises more, at a time when the majority of working Americans have no slack in their household finances (40 percent of American adults can’t cover an unexpected expense of $400, much less the sudden loss of a regular paycheck).

The House of Representatives passed a series of bills last Thursday that would end the shutdown for most federal agencies and punt the more contentious decisions about border security to future negotiations. The legislation is nearly identical to bills passed in the Senate before Christmas — “exactly, word for word” the same, according to Speaker of the House Nancy Pelosi.

But Majority Leader Mitch McConnell has not brought that legislation up for a vote in the Senate. Despite his well-earned reputation for deal-making, McConnell sees “no particular role” for himself in ending the current stalemate. McConnell explained his position to the Senate this way: “My friends across the aisle understand the ground rules perfectly well…They know that making laws takes a presidential signature.”

But McConnell’s civics lesson is not quite accurate. When it comes to legislation passed by Congress and sent to the president for signature or veto, the framers of the Constitution provided a third option: A bill can become law through presidential inaction.

Article I, Section 7 of the Constitution spells out how a bill becomes a law. When it comes to the president’s role in this process, that section is most often thought of in the context of the veto. But it also states: “If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a law, in like Manner as if he signed it…”

This provision offers the president and Congress a way out of the shutdown without betraying their respective political constituencies. McConnell could bring the newest House bill to the floor of the Senate for a vote — where it seems likely to pass — and the president could allow the bill to become law, without shouldering the potential political liability of appearing to endorse it.

While the House bill contains no money for a border wall (though it does include appropriations for border security), it does not rule out additional funding for border security in the future. Once the government is open, Congress and the administration can revisit the issue of border security separately — or, better yet, as part of comprehensive immigration reform —without continuing to inflict pain on furloughed workers.

And this is not some esoteric procedure never before employed.

The government did not begin keeping count of the total number of bills that become law without a president’s signature until 1945, according to a Ford administration memo. But the practice’s roots run deep. While James Buchanan was the first president to use it, presidents have considered employing the non-signature clause since the country’s infancy.

George Washington contemplated exercising the option during negotiations over the Tonnage Act of 1789. “The opposition of the Senate to the discrimination in the Tonnage Bill was so adverse to my ideas of justice and policy,” Washington wrote, “that, I should have suffered it to have passed into a Law without my signature, had I not been assured by some members of that body, that they were preparing another Bill which would answer the purpose more effectually.”

In the second half of the 19th century, Washington’s successors went further, employing the practice on 453 occasions, between Buchanan’s first usage in the 1850s and 1889, according to a study conducted in 1890 by Harvard professor Edward Campbell Mason. The frequency of their usage varied wildly, from Abraham Lincoln, who used it but once, to Grover Cleveland who let a whopping 283 bills become law without his signature during his first term in office.

And the Supreme Court has affirmed the constitutionality of the practice. In Gardner v. The Collector (1867), the Court wrote: “Here are two courses of action by the President in reference to a bill presented to him, each of which results in the bill becoming law. One of them is by signing…and the other is by keeping it ten days, and refusing to sign it.”

Still, not all presidents have agreed that the approach is a good one. Lecturing in 1915, after his term as president and before his tenure on the Supreme Court, William Howard Taft voiced his disapproval of the practice. “My own judgement is that the wiser course in such a case is for the President to sign the bill, with a memorandum of his reasons for doing so, in spite of his objections,” Taft said.

Yet many of Taft’s successors disagreed, seeing the non-signature clause as a solution to cases precisely like the one facing President Trump: a bill with many provisions that the president wanted to see enacted, mixed with some stipulations that he opposed.

Franklin Delano Roosevelt, for example, agreed with most of the provisions of the Revenue Act of 1938, but was disappointed that the bill “abandon[ed] the accepted principle of progressive taxation.”

“If I sign the bill, many people will think I approve,” he explained in a speech in Arthurdale, W.Va. in May 1938. “If I veto the bill it will prevent many of the desirable features of it from going into effect. Therefore…I am going to take the third course which is open to me.”

Several bills also became law without Richard Nixon’s signature. When it came time to reauthorize a food assistance program, Nixon opposed the bill’s funding scheme but feared a veto would make him look callous. “There should be no doubt about this administration’s commitment to fight against hunger,” Nixon said.

On another occasion, Nixon disagreed with an infrastructure appropriations bill but argued that vetoing it would distract legislators from other “vital business.”

In a third instance, Nixon worried that vetoing a presidential campaign oversight bill would make him look dubious. “I recognize that Congress and the public would place an interpretation upon a veto which would be entirely contrary to my reasons for vetoing it,” Nixon explained.

All three bills became law without the president’s signature.

And in 2016, for the first time in 21 years, President Barack Obama allowed the Iran Sanctions Act extension to become law without his signature.

Although a rarity in the last few decades, the shutdown is precisely the kind of impasse where the provision is most needed. Both sides need a way out and President Trump could rely on historical precedent to portray his action as a anything but capitulation. In fact, he would be joining many of his predecessors who, for more than 150 years, relied on the non-signature provision to express their deep disagreements with elements of a law, at the same time they allowed the law and the country to move forward.

To be sure, reopening the government through Article I, Section 7 isn’t a perfect solution. It would symbolize an unhealthy approach to policy-making. That Congress and the president are unable to come to terms on a package to fund the federal government is a troubling sign of dysfunction. It’s also certainly possible that some of President Trump’s supporters would see such action as a tacit retreat. But that is not how the practice has been employed historically, and it offers a way out of a seemingly intractable shutdown that threatens the well-being of millions of Americans.

As other options fall by the wayside, Article I, Section 7 offers a path forward that is dramatically superior to allowing the government to remain closed.

And perhaps that’s precisely how the framers of the Constitution intended it.